The opinion
Casey and Yesawich, Jr., JJ.,
dissent and vote to affirm in the following memorandum by Yesawich, Jr., J. Yesawich, Jr., J. (dissenting). We respectfully dissent. Except for orders relating to its power to define the appropriate employer-employee negotiating units and ascertainment of the employees’ choice of representative, orders of the Public Employment Relations Board (PERB) are deemed to be final and reviewable (see, Civil Service Law § 207 [1], [2]; § 213 [a]). The reason underlying these exceptions is that a review of such questions may be mooted by an election (Matter of Civil Serv. Employees Assn. v Milowe, 66 AD2d 38, 45 , mod on other grounds sub nom. Matter of Civil Serv. Employees Assn. v Newman, 46 NY2d 1005 ). Here, PERB dealt only with whether the State Insurance Department Liquidation Bureau (Bureau) was a "public employer” as that term is defined in Civil Service Law § 201 (6). No determination was made relative to defining the negotiating unit or verifying the employees’ choice of organization to represent them. Moreover, an election will not moot the issue of whether the Bureau is a "public employer”.
As Special Term aptly observed, "[cjommon sense and fairness require that petitioners be allowed to proceed with their Article 78 proceeding at this juncture, rather than incur the time and expense required in the certification process * * * which would not be required if the Bureau is subsequently deemed to be a non-public employer.” (See, Matter of Civil Serv. Employees Assn. v Helsby, 31 AD2d 325, 329 , affd 24 NY2d 993 .) Accordingly, we would affirm Special Term’s order.